Sex Offender Registration Statutes

KEY TAKEAWAYS

• Common-law rape was a capital offense, did not include rape of a spouse, required extreme resistance by the victim, and required evidence to corroborate a victim’s testimony. Modern statutes do not make rape a capital offense, often criminalize spousal rape, and do not require extreme resistance by the victim or evidence to corroborate the victim’s testimony. At early common law, sodomy was the anal penetration of a man, by a man. Modern statutes make sodomy gender-neutral and only criminalize sodomy without consent.
• The criminal act element required for rape is sexual penetration accomplished with force or threat o f force in many jurisdictions.
• The attendant circumstance element required for rape is lack of consent by the victim.
• In many jurisdictions, the victim does not need to resist if the defendant uses force. If the victim is faced with a threat of force rather than force, the victim need not resist if he or she has a subjective fear of serious bodily injury, and this fear is reasonable under the circumstances.
• In modern times, a victim’s testimony does not need to be corroborated by other evidence to convict a defendant of rape.
• The criminal intent element required for rape is general intent o r knowingly to commit the criminal act.
• In some jurisdictions, the criminal intent element required for the rape attendant circumstance is negligent intent—providing for a defense of mistake of fact as to the victim’s consent. In other jurisdictions, the criminal intent element required for the rape attendant circumstance is strict liability, which does not allow for the mistake of fact defense.
• The harm element required for rape is penetration, no matter how slight. Ejaculation is not a requirement for rape in most jurisdictions.
• Rape shield laws generally preclude the admission of evidence of the victim’s past sexual conduct in a rape trial, unless it is allowed by a judge at an in camera hearing. Rape shield laws also preclude the admission of evidence of the victim’s style of dress and the victim’s request that the defendant wear a condom to prove victim consent. Some rape shield laws provide that the victim’s testimony need not be corroborated by other evidence to convict the defendant of rape
• Acquaintance rape often goes unreported and does not necessarily include use of force by the defendant or resistance by the victim.
• States that criminalize spousal rape generally require the same elements for spousal rape as for rape and grade spousal rape the same as rape.
• Statutory rape is generally sexual intercourse with a victim who is under the age of legal consent. Statutory rape does not have the requirement that the intercourse be forcible and does not require the attendant circumstance of the victim’s lack of consent because the victim is incapable of rendering legal consent. In the majority of jurisdictions, the criminal intent element required for statutory rape is strict liability. In a minority of jurisdictions, the criminal intent element required for statutory rape is negligent or reckless intent, providing for a defense of mistake of fact as to the victim’s age.
• Sodomy has the same elements as rape except for the criminal act element, which is often defined as forcible penis to anus penetration, rather than penis to vagina penetration. In addition, in some states sodomy is criminal with consent when it occurs in a state prison or a local detention facility or jail. Oral copulation also has the same elements as rape, except for the criminal act element, which is forcible mouth to sexual organ or anus penetration. Incest is sexual intercourse between family members who cannot legally marry.
• Generally, rape, sodomy, and oral copulation are graded as serious felonies. Factors that enhance grading of sex offenses are penetration, gang rape, bodily injury, the use of a weapon, a victim who has intellectual or mental disabilities or is youthful or intoxicated, and the commission of other crimes in concert with the sex offense. Sex offenses committed with the victim’s consent and without penetration are typically graded lower. If the victim is below the age of consent, a large age difference exists between the defendant and the victim, the defendant is an adult, or the victim is of tender years, grading typically is enhanced.
• Typically, a Megan’s law statute provides for sex offender registration and notification to the public that a convicted sex offender lives in their area. A Jessica’s law statute often includes a stay-away order mandating that a sex offender cannot live within a certain distance from areas such as a school or park where children tend to congregate. Jessica’s law statutes also provide for GPS monitoring and extend the sentencing and parole terms of child sex offenders.